Subbuswami Goundan vs Kamakshi Ammal and Another

This is a petition praying for an order directing the bringing up to the Court of a minor married girl and also for an order directing that she be

handed over to her husband, who is the petitioner. The young girl is the wife of the petitioner and the first respondent is the mother of the minor girl

and the second her step-brother. The petition is founded on the allegation that after the marriage the wife having got into the custody of the two

respondents, they have illegally detained her. If these facts are proved, then it is quite sufficient for us to make the order prayed for, if we are

satisfied that it is in the interests of the wife that she should be handed over to the care of the person who should naturally have her in his charge,

namely, her husband. The petitioner married this young girl on the 9th March, 1927. She is said to have been about 10 or 11 years of age then--

the evidence as to the exact age of these children is usually rather indefinite and vague--but assuming her age to have been 11 years, she is now

just over 13 years. She is of the Goundan class and, according to the petitioner, it is the custom of that caste for wives even before they have

attained puberty to reside under the husband''s roof. In this case, it is asserted by the petitioner that she resided under his roof and under the roof

of his mother for some seven, eight or nine months. That assertion is denied by the respondents, who say that except for two periods, each of them

of about 8 days, she has all along since the marriage resided with the respondents. The petitioner''s case is that after the marriage she was living

with him at Sindu-patti, where he was then Sub-Registrar and that afterwards she was living with his mother at his family house at Pannaipuram.

Whilst there, there was, according to him, an outbreak of plague, and having the health and safety of his wife to consider, she was then sent home

to the respondents, where she has been living since. As I have stated, the respondents'' case is that this is untrue and that except for these two

periods of 7 or 8 days at a time she has never resided under the roof of her husband. Last year the petitioner met with a very serious motor

accident which necessitated his having to take leave for a year and during that time he was not nursed by his wife. On his return from leave his wife

attained puberty this was some six months ago according to him--and he wished to consummate the marriage and sent word to the respondents

stating his willingness to do so, but. the respondents refused to send the girl and there is no question about it at all that the puberty ceremonies did

not take place until two or three months after the girl attained puberty. The petitioner''s case is that during this time the respondents were attempting

to extort from him a large sum of money and some lands as a condition for allowing the girl to return to him; and evidence upon this point has been

called and it is abundantly clear to us that, whatever may be the real facts with regard to that, the petitioner had to pay Rs. 100 to the respondents

towards the expenses of the puberty ceremonies.

Counter-affidavits have been filed by the first and second respondents. The first respondent has not signed her own affidavit but it is signed on

her behalf by the second. Both the affidavits contain largely matters which are entirely irrelevant and which, if true, would merely be reasons for not

allowing the young girl to have married the petitioner at all. They do not set forth any valid reasons for detaining the girl after her marriage and

refusing to allow her to return to her husband. However, it is asserted that on the occasion of her first visit to her husband after the marriage, which

it is alleged by the respondents was only for some eight days and on this occasion she was accompanied by her mother, the wife was subjected to

ill-treatment, the story being that she was sent by the petitioner to fetch water and as there was some delay in getting it he abused her, kicked her

and beat her and later on sent her away. That is the story put forward by the respondents and is the one reason which is strongly relied upon by

them here as a justification for the girl being with them as it is alleged that the girl is unwilling to return to her husband. We may say also that it is the

case of the respondents that they have not detained her against her will; on the contrary, it is their case that they are and have been all along most

anxious that she should return to her husband and have endeavoured to get her to do so. But they say that this young girl is extremely self-willed

and under no circumstances would she ever think of, or be willing to return to, her husband, the reason for this being that she fears a further

outbreak of ill-treatment. So that the respondents'' case is that they have not detained her and have always been willing that she should return to

her husband, but that she of her own free will remained with them and no persuasions or inducements would get her to rejoin her husband.

We ordered the girl to be brought here and also ordered the attendance of both the respondents and the petitioner. We questioned the wife in

chambers and the conclusion we have come to with regard to her--and it is a very definite and clear conclusion is that she has been tutored by the

respondents. That appears to us to be beyond all question. With regard to certain questions put to her touching important matters in the case, she

pretended that she knew nothing of them at all and she is obviously an untruthful person, because it is said that she was taken to Madura and

stayed there for some time for the purpose of undergoing treatment to her eyes. This she herself denied but even her mother, the 1st respondent,

admitted, although reluctantly that this was the case. When asked whether she was willing to return to the petitioner she definitely and with a great

show of resolution said that nothing could ever induce her to return and that she would rather die than return to him. We are satisfied that in so

saying she was not expressing her own opinion at all, but that she was told to say this by her mother and the second respondent. That being so,

much of the argument which has been addressed to us on behalf of the respondents as to the duty of the Court to consider the wishes of the wife

disappears. If, however, this declaration of the wife that she was not willing to return to her husband were true, then we would have to consider

what the duty of the Court is. Whilst it is quite unnecessary, in our view of the circumstances, to consider that position, we must state that we

consider that in the case of a girl of only 13 years of age her consent or otherwise is quite immaterial. What we would have to consider would be

the welfare of the minor wife and in doing so the fact that she prefers to reside elsewhere than with her husband, although had she been old enough

to form a good opinion, this would have been a very important circumstance for consideration, would not in our view be entitled to very much or

any weight at all. We have also come to the conclusion that the assertion that she was ill treated when she was residing under her husband''s roof is

a pure invention. The only evidence with regard to this is the statement of the young wife herself which, for the reasons we have already stated, we

decline to attach any weight to and that of her mother, the first respondent, who professes to have been an eye-witness of it. But there is this

important fact to be considered. In the affidavit which was sworn to on the first respondent''s behalf by the second respondent no allegation

whatever is made that the young girl was beaten or kicked by her husband. The only reference to this occurs in the affidavit of the second

respondent and he does not profess to have been an eye-witness of it and is therefore entirely hearsay. We do not think that, had this young girl

been subjected to ill-treatment, she would have been allowed, even accepting the respondents'' case, to have gone back again to her husband, nor

do we think it in the least bit likely that either of the respondents would have been anxious that she should return to him as they say they are. The

whole case appears to us to be a pure concoction and we shall dismiss that charge of cruelty as being entirely untrue. We have to consider the

welfare of the minor and in this connection we are bound to say that we think that it is to the advantage of this young girl that she should return at

the earliest possible moment to her husband, who is a well-to-do man, a Bachelor of Arts, a Sub-Registrar, and, so far as we can see, perfectly

respectable. It must always be to the advantage of a wife to return to her husband and it is very difficult to believe that Hindu parents of a young

wife would ever consider that it was better for her to remain with them than to go to her husband after she has attained puberty. It is not necessary

for us to consider why it is that the respondents have kept this girl from her husband. But there is evidence, which we think we are entitled to rely

on, that the respondents attempted to make terms upon which this young girl would be allowed to return to her husband. There is the evidence of

Chinnaswami Goundan, who is a relation of the respondents and also a connection by marriage of the petitioner and who lives next door to the

respondents, that the respondents were demanding Rs. 5,000 and some lands as a condition for allowing the girl to return to her husband. We

think that it is most probable that that correctly represents the facts. It was pressed upon us on behalf of the respondents that this was most unlikely

because at the time of the marriage the respondents could have insisted as a condition for giving their permission to the petitioner to marry this

young girl on the payment of a very substantial sum of money. Although in some cases this no doubt would be a very cogent argument, we think

that in this case no such terms were exacted, because the respondents were anxious that this girl should marry the petitioner and therefore did not

want to risk the marriage going off by insisting upon onerous terms.

Another argument addressed to us, which seems to us to have no force at all, was that the proceedings u/s 491 of the Criminal Procedure Code

were not the appropriate ones. On the facts of this case, it was argued that the relief should have been sought under the Guardians and Wards Act

which would not have put upon the respondents the expense that these proceedings have done, because the enquiry could have been had locally

and therefore been less expensive than this. It is said that by adopting these proceedings the petitioner has given evidence of his vindictiveness and

that he has really used this Court as a means of extortion, that is to say, by bringing these proceedings he has, as it were, exercised an unfair

pressure on the respondents. This is an argument which we cannot accede to. We are very far from saying that, in a case such as this, the remedy

of the husband could be under the provisions of the Guardians and Wards Act, but it is not necessary for us to express an opinion beyond saying

that we think it is very doubtful. Even assuming that that remedy were open to the petitioner, it is clear that the remedy u/s 491 of the Criminal

Procedure Code is one which is open to the petitioner and the respondents cannot be heard to say that where there is a remedy provided by law,

that should not be resorted to, because there is another remedy less expensive and less threatening. Bacon, V.C., in Bryant v. Bull (1878) 10

Ch.D 153 when he had to deal with a similar argument, said that it did not matter how many remedies were open to a person, there might be

5,000; he was entitled to avail himself of any one of them and that what had to be shown was that the remedy that he did avail himself of was not

open to him. It is quite clear that the petitioner is entitled to come here u/s 491 of the Criminal Procedure Code. We are satisfied that there is no

force in the argument addressed to us.

Another argument put forward was that the wife had not been illegally detained. This, of course, was founded on the assertion that she

consented to live with the respondents and is unwilling to return to her husband. As we have already expressed the view that she is not unwilling to

return to her husband, much of the force of this, argument is lost. But it is quite clear from Abraham v. Mahtabo I.L.R.(1889) C 487 that even if a

minor does consent and remains in the custody of those who are charged with illegally detaining her that does not matter, but the persons who

keep her even with her consent are to be held to have illegally detained her if a person who is better entitled in law to have the custody of that

person desires to have that custody. That was a case u/s 552 of the Criminal Procedure Code, but we think that the reasons given for deciding the

case in that way are equally applicable to the facts of this case.

Under these circumstances we find that the petitioner is entitled to have the order he asks for. We direct the respondents to hand over the minor

wife to his custody. The wife will be handed over now in Court to her husband.